It is time to pause to look behind us, to see what has been accomplished in 2012, and over the horizon, for what needs to be accomplished in 2013. I think it is fair to say that the Coast Guard and salvage industry have come a long way in the last few years with implementation of the salvage and firefighting final rule, which was published on December 31, 2008, and delayed until February 22, 2011, to provide for harmonization with the changes to the vessel and facility amendments for response plans. Many of the kinks on the interpretation of this final rule have now been worked out. However, there is no time to rest for there are many other issues in other areas that still need a lot of work. We will now take a look at three key issues that the government and industry should prioritize for 2013. They are (1) implementation of the non-tank vessel response plan (“NTVRP”) final rule, (2) places of refuge, and (3) responder immunity.
Non-Tank Vessel Response Plans
The industry has been waiting for years for the Coast Guard to finally implement regulations requiring non-tank vessels to meet response plan requirements. Indeed, to review, the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) contained a provision requiring owners and operators of all non-tank vessels of 400 gross tons or greater—as measured under the International Tonnage Convention (“ITC”)—to prepare and submit NTVRPs to the Coast Guard by August 8, 2005. On February 4, 2005, the Coast Guard issued Navigation and Vessel Inspection Circular Number 01-05, which was amended by Navigation and Vessel Inspection Circular Number 01-05, CH-1 (“NVIC 01-05, CH-1”), dated January 13, 2006, in order to provide interim guidance for the development and review of NTVRPs.
Regulations were not issued over the next several years, however, the Coast Guard issued a notice on June 23, 2008 to inform U.S. and foreign-flag non-tank vessel owners and operators that, effective August 22, 2008, it would begin enforcing the requirement to prepare and submit an NTVRP for certain non-tank vessels based on the requirements contained in the law. In the absence of such regulations, the Coast Guard has been enforcing NTVRP compliance for such vessels pursuant to the Ports and Waterways Safety Act. Finally, the Coast Guard issued a notice of proposed rulemaking (“NPRM”) on August 31, 2009. Since that time, we have been waiting for the final rule to make its way through the Coast Guard and Department of Homeland Security review process. It now appears that the rule will finally be published in the near future. The Office of Management and Budget (“OMB”) commenced review of the final rule on March 9, 2013. OMB review of a rule generally takes 90 days. Thus, we can expect the final rule to be published in the Federal Register in June 2013 subject to OMB delaying publication or taking other action. This will be an important milestone in formalizing the response plan regime for the large number of non-tank vessels operating in U.S. waters.
Places of Refuge
In its simplest of terms, a place of refuge is an extension of the broadly accepted principle of force majeure at sea. Under principles of force majeure, those found at peril at sea should be assisted by any person to remove them from such peril. Similarly, in cases in which the ship itself and the ship’s cargo are at peril, the obligation arises for countries to provide a place of refuge for a vessel to minimize additional damage and to make necessary repairs as quickly as practicable in order for the vessel to depart.
Following extremely controversial incidents at sea involving the M/V Erica in 1999, the M/V Castor in 2000, and the M/V Prestige in 2002 involving tank ship structural failures at sea, the International Maritime Organization adopted a resolution entitled “Guidelines on Places of Refuge for Ships in Need of Assistance” on December 5, 2003. In particular, the resolution provides guidelines, not only for masters or salvors in need of places of refuge, but also guidelines for actions expected of port States. The resolution rightly recognizes the authority of the coastal State to exercise its authority in such cases taking into account the threat presented by the ship based on a number of factors. Importantly, when a master requests permission to enter a port for refuge, although there is no obligation for a port State to grant it, under the resolution the port State is urged to consider and balance all the factors and risks in making a determination as to whether to grant refuge.
The Coast Guard issued its policy on places of refuge on July 17, 2007 in the form of Commandant Instruction 16541.9. This policy essentially adopts the Incident Command System as the central process mechanism to address refuge cases should they arise. In such cases the local Coast Guard Captain of the Port (“COTP”) is responsible for granting or denying claims of force majeure and requests for safe refuge. This is similar to the Unified Command concept used for oil spill response cases in which all stakeholders participate (e.g. owner/operator, state and local representatives, salvors, oil spill removal organizations (“OSROs”)). I submit that this is a sound mechanism because it is the one that not only the government but industry has used successfully over the years in pollution incidents.
Of note, the recent incident involving the grounding of the 28,000-ton drill ship Kulluk in January 2013 after breaking tow lines during stormy weather demonstrates that the Unified Command system also works well for these types of incidents. The Unified Command was established when the tow could not quickly be re-attached. Ultimately, the Unified Command made a decision to allow the Kulluk to be grounded off of Kodiak Island. The Kulluk incident provides a good example of how things can and should work in such cases. However, to ensure future successes in this area I suggest that it is incumbent on industry and the Coast Guard to identify potential places of safe refuge and to conduct place of refuge exercises and drills on a routine basis around the country in the various COTPs areas.
There have been a number of articles written in the last year about the importance of responder immunity. The reason that this issue remains so important to our industry is that our country remains at risk that responders may decide not to respond as quickly or aggressively as they might otherwise have responded had Congress taken action to address the gaps in the current responder immunity enacted pursuant to the Oil Pollution Act of 1990 (“OPA 90”). Unfortunately, the major maritime-related bill passed by Congress last year, the Coast Guard and Maritime Transportation Act of 2012, which was enacted on December 20, 2012, included few spill-related provisions, and the responder immunity provision was omitted.
In short, what we have learned is that law suits were filed against the offshore supply vessels fighting the fire and the rescue teams (i.e. emergency responders) following the Deepwater Horizon incident in addition to the law suits filed against BP. Additional law suits were filed against OSROs, the spill management team, and dispersant operators (i.e. clean up responders). Plaintiffs made allegations of gross negligence, and also claims for damages resulting from alleged exposure to released oil or exposure to the dispersants used to treat that oil. These exposure claims are considered personal injury claims falling outside the scope of OPA 90’s responder immunity provisions. Although claims against the emergency responders have been dismissed, the claims against the clean up responders remain active pending a decision on motions for summary judgment. It is indeed ironic that these claims remain active yet the private claims against BP have been settled.
As a result, it remains one of the top priorities of the salvage industry and the entire response industry to continue to pursue this enhanced protection for responders to ensure an effective and immediate response to the next major spill event. It is important for us all to make sure that this issue continues to resonate with Congress as an urgent issue that needs resolution as soon as possible.
In conclusion, as we go about our work addressing the various brush fires that we must deal with on a daily basis, we should also continue to set aside the necessary time to resolve these long term goals in 2013 – steady as she goes mate!
"Key Salvage Issues for 2013 – And Beyond…" by Jonathan K. Waldron first appeared in the April 2013 edition of Marine Link. http://www.marinelink.com/.